An Employment Attorney Examines Cognitive Biases at Work

Seeing into our own biases is the first step to improving our ability to think clearly. This self-reflection is discomforting, but its rewards are many.

That bias is so persistent in human thought suggests it has survival value. Bias is an economizing practice that saves mental redundancy. What does that mean? It means snap judgments are efficient. I am advocate for bias, but with a qualification: do not sacrifice truth and ethics for efficiency.

As we know, snap judgments are often wrong. The term “implicit bias” has been used more often recently by researchers to label our unconscious snap judgments based on racial, age and gender differences. My temptation is to say, “duh!” After nearly 25 years practicing employment law, I have not had a case in which the defendant has proudly announced his racism, ageism, or sexism during cross examination. Nor have I had the pleasure of suing a secret skinhead with a pathological ability to lie. Rather, all my named defendants are sincerely self-proclaimed innocents. The circumstances of the demotion, transfer, layoff or firing tell otherwise.

The acceptance of implicit bias frees us from the social stigma of prejudice. We are not morally corrupt because of our biases. We can even embrace our biases as inherent in the human condition. They likely emerge from millennia of transmitted genes. Our first mother, walking in the African savanna, hears a sound from somewhere in the high grass. She can wait to satisfy her curiosity, and potentially be eaten by a predator, or she can immediately judge the situation a danger, and run. If she guesses correctly that a lion is on her trail, she lives. If she guesses wrongly about the lion however, she also lives, and she can laugh at herself after catching her breath. Stated in modern terms, the cost/benefit analysis favors bias. Yet, also in modern terms, our primitive brains operating from deep within our emotions must now be mediated by our prefrontal cortex. We are challenged to bring implicit bias to the surface for cross-examination.

Psychologists have identified at least twenty cognitive biases that operate to sabotage our human relations. As I practice employment law, I will illustrate each of these in a work context.

Anchoring bias. A manager is over-reliant on the first piece of information she receives. Joe’s current boss tells Joe’s newly appointed boss, “Joe is a slacker.” The new manager anchors incoming information to this first information.

Availability heuristic. A manager overestimates the importance of the limited information she has. Her information source may be the hearsay of some co-workers. She doesn’t have time to dig deeper to understand if her subordinate is as incompetent. She goes only with what she has.

Bandwagon effect. One manager states a strong opinion to a committee of co-managers that older workers are stuck in their thinking, and that fresh faces are needed. No one challenges her, and “group think” sets in that layoffs are the solution.

Blind-spot bias. A manager sees that a male subordinate is dismissive of women’s participation during strategy meetings. But the manager does not see that she often chides men, and excludes them from her inner circle of advisors.

Choice supportive bias. During a corporate merger, decisions must be made who will be eliminated. The acquiring company managers see their choices of hires from the acquiring company as superior generally to the employees in the acquired company.

Clustering illusion [Finding a pattern in a random event.] A manager reviews sales data to see that employee Bob beat the odds by closing a nearly impossible deal, with almost no effort. She therefore assumes not only Bob, but all her sales staff should be closing big deals more quickly. She ups the quota for everyone.

Confirmation bias. A manager eliminates all data that disagrees with her decision. When a subordinate achieves a work success, the critical manager ignores that success, and focuses on failures only.

Conservatism bias. A manager favors history over new developments. For example, during boom times in the industry, sales increased. The manager continues to set high sales quotas for his team without adjustment for a persistent recession. He then disciplines and layoffs “underperforming” employees.

Information bias. This something like the inverse of the “availability heuristic.” A manager places too much importance on more information. A manager insists on more data that does not contribute to execution. This tendency is often found in managers who require numerous detailed reports that actually interfere with employees’ ability to perform productive work. These managers then discipline the productive employee who does not deliver her reports on time.

Ostrich effect. We all know this one. We don’t look at what we don’t want to see because it frightens us. A manager has a top producer on the team who consistently wins awards. This producer also sexually harasses his co-workers and can be verbally abusive. The danger is not only the obvious inevitable lawsuit, but the resulting loss of talented co-employees who quit. The manager ignores or minimizes the incoming complaints.

Outcome bias. [This is converting causation from chance to skill.] A manager rewards high grossing account managers based on merit related to production. However, this same manager overlooks that she has assigned easy accounts with high volume sales to her favored employees, while others receive difficult, low volume customers. She ignores effort and difficulty, and looks only to increased total sales to reward or punish.

Overconfidence. This is misplaced optimism in one’s own ability or judgment. When subordinates offer insights or suggestions, they are rebuffed, until they no longer contribute. Their manager already knows it all.

Placebo effect. [This may not be all that bad in some circumstances, but it is based on fallacy, so eventually fails.] A manager believes a co-employee is the answer to a struggling department’s problems. Just the presence of this addition to the staff results in a shift in the manager’s hope and behavior. The department actually improves its production, although the employee in question is at best a neutral addition.

Pro-innovation bias. [This is a bias for change.] The top management decides the answer to the company’s problems is a restructuring. Lines of reporting shift, and persons are moved around. Employees are confused and ill-equipped for the disruption. Productivity drops, followed by another restructuring, with more layoffs and new hires.

Recency. [over-reliance on the most recent data]. The last 4 quarters look pretty good. Managers set performance measures without regard to industry segment business cycles. They hire excessively. Later, they punish employees who cannot meet their false assumptions. These managers begin laying off people as underperformers, but only after a series of demeaning and unjust performance warnings.

Salience. [judging superficial features without looking more deeply] Managers focus on form over substance. An employee who broadcasts her accomplishments while spinning her faults is viewed more favorably than the quiet steady performer.

Selective perception. [We see what we expect or want to see.] A manager was once falsely accused of theft by an employee fearful for her job. The employee used the charge to deflect attention from her own work deficiencies. Years later, another employee comes to this same manager with a complaint that a co-worker is stealing from the company. The manager fails to hear or report important information to Human Resources.

Stereotyping. A manager meets with a union representative. The manager immediately is on the defensive, assuming “those people” never cooperate.

Survivorship bias. [A subset of selective perception, this is looking to the outlier as the norm.] An average employee survives multiple layoffs because of luck. A co-employee therefore assumes job security as well, and takes no measures to improve skills or look now for other work]. Or as another example, a top executive observed that a truly extraordinary manager pulled off a highly unlikely turnaround of a department. She therefore holds all subsequent hires to that historical anomaly.

Zero-risk bias. [A bias for certainty] Company executives must decide whom to fire: the male manager falsely accused of sexual harassment, or the falsely accusing “victim.” The falsely accused manager has no legal case for wrongful termination despite the unfairness. On the other hand, the false accuser if fired for making a false accusation, will undoubtedly sue. There is zero risk in firing the manager. The company filters out the information supporting the manager’s innocence.

Conclusion. We are biased because bias has functional value. It’s an efficient way to navigate through the myriad choices we face daily. But the efficiency of bias can become dysfunctional. Better thinking produces better choices. Start with recognizing how bias operates. Then entertain that you may be blind to how it operates personally in your own thinking. Challenge your automatic “thinking” against the bias checklist summarized in this article.

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Mr. Pray has settled hundreds of cases to the satisfaction of his clients, and obtained arbitration awards or verdicts when cases did not settle. He works with each client to set realistic goals based on client preferences and risk tolerance. Together, attorney and client reach an early definition of “success” for the outcome of your particular employment law case.